31 October 2003

It has been a truly weird week.

It started out normally enough. The high point of Monday was when the prosecutor dropped four grand larceny charges and my client walked out of court free and clear. Tuesday was a day without any cases assigned so I spent it negotiating with Commonwealths and trying to get all the various paperwork (which never seems to end) done.

Wednesday got a little weird. I walk into district court in the morning and find out that my big case for the day had co-defendants (well, I already knew that) and that they have both hired counsel who were up at the bench as I walked in trying to convince the prosecutor that my client is the bad guy. I scotch that notion as quick as I can but the preliminary hearing doesn't take place because the prosecutor hasn't been able to locate a witness and the judge grants a continuance. Then I go up to the circuit court because I've got couple hours to kill before my next case and I go in and sit down to watch part of a civil jury. I no sooner sit down then I hear the plaintiff's attorney telling the judge, "Your honor, at this point I want to read the doctors' testimony into evidence but I didn't bring anyone to read the doctors' parts so I guess I'll just read it all." Yep, you guessed it - the judge looks into the gallery and says, "Well Mr. Lammers is here. He could read the doctors' parts." So I hustle up to the witness stand, get handed a transcript, and have to read cold testimony which includes all sorts of fun terms like "pneumothoraxic." What fun. All I can say is thank God I took Latin in high school and a semester of Greek in college.

That afternoon I get bounced around a little bit because the prosecutor's office isn't really sure who is assigned to my cases the next day but I finally track them down. In particular I talk to one about the bench trial we have Thursday afternoon which is for felony petit larceny and assaulting a police officer. We bang out what is a very reasonable offer and I spend 40 minutes driving down to Riverside Regional Jail. Then I wait over two hours before I am finally able to see my client. A hour after that I leave and drive straight home (another hour; it's 9:30 when I get home).

Thursday started out O.K. In the morning the prosecutor drops a grand larceny charge against my client and reduces the felony selling fake drugs to a misdemeanor selling fake drugs. The kid gets 30 days actual jail time and is approved for work release so I'm feeling like I'm actually doing pretty good (should have known better). I watch another attorney do jury selection and opening arguments and then go get lunch at what passes for a cafeteria in the local courthouse1.

Finishing early, I go to the basement holding area and talk to my client. Afterward I go and tell the prosecutor that the deal she offered has not been accepted; she asks if we are going to have a bench trial and I tell her yes. At 1 p.m. the prosecutor and I are sitting in the courtroom waiting. My client's witness is missing and her officer has not shown up. About 5 minutes later my witness shows but the officer is still not there. The prosecutor goes off, makes some phone calls, and comes back to tell us the officer is on the way. He finally shows up in sweats having come straight to court from the gym. I go back to tell my client we're about to start and we have a discussion. I come out and tell the prosecutor that a jury trial is going to be demanded.

At about 1:45 the judge sits at the bench. I stand up and tell him that the right to a jury trial is being asserted. The judge looks about as upset as I have ever seen this particular judge and says, "O.K. Mr. Lammers then we're going to have the deputies assemble a jury and we'll start at 3 p.m." As soon as the judge leaves the bench I bolt downstairs and take care of two cases I have in district court. The prosecutor in district court is kind enough to expedite my matters which thankfully were not complicated (a trespass dropped by the prosecutor and a petit larceny continued because the prosecutor did not have his witness). Still, it takes over 1/2 hour and I run over to get a copy of the instructions which the prosecutor has printed up - thankfully, none of them are objectionable. Heading back upstairs, I get there exactly at 3 p.m., just in time to wait another 30 minutes for the 20th juror to arrive.

The judge calls my client out and arraigns him; my client pleads not guilty to both petit larceny and assaulting an officer. The judge asks him if he's ready for trial (yes) and a series of questions to make sure he knows what's going on. Then he asks him if he's ready for trial a second time and the kid says, "No." The judge questions him about that and the kid's answer is pretty much incomprehensible - all that really makes sense is that he wants a continuance. I try to help him distill what he's saying but it doesn't get much better and there comes that moment where he starts saying things about me. At that point I just pick a point on the wall and stare at it (attorney-client privilege being the wonderful thing it is I am unable to talk). Finally, the judge cuts him off and asks if he is happy with my representation; he says, "Yes" and the judge moves on with the trial. I, of course, have to stand up and make a formal motion to continue based on my client's desires but the judge, of course, denies it.

Then we go to trail. It's not too long - the only witnesses are the officer, my client's aunt, and my client. The jury's out for more than a hour before they send a note to the judge telling him they have a verdict on one charge but are totally deadlocked on the other. The judge brings them out and asks the foreman for the verdict forms. The foreman says he hasn't filled them out yet so the judge sends the jury back in to do so (he tells them to write something like "deadlocked" on the one they disagree on). They go back in and then return about 10 minutes later. The forms are handed up to the judge and he reads "Guilty" for the felony petit larceny and we are all a little shocked when rather than "deadlocked" he reads "Not Guilty" on the felony assault of a police officer. Apparently, when they went back the last time whoever the holdout was must have finally come around.

However, then the jury has to go back in to decide the sentence for the felony petit larceny. The jury returns with a sentence of 3 years and 6 months on a petit larceny of a $5.00 T-shirt, instantly turning a pretty hard fought win into a pyrrhic victory. That's 3 times the sentence he probably would have received if the judge had found him guilty of both charges and sentenced him. The judge asks for motions and I ask for a poll but I really can't pay attention because I am arguing with my client. The judge asks for further motions and I say "No" so he starts to sentence my client and I have to break in and tell him I thought he would do that outside the presence of the jury and I need to speak to my client. He sends the jury out and I tell him I need some time to talk to my client because we are having a difference of opinion as to whether he should have a sentencing hearing (wherein I might convince the judge to suspend part of the jury's sentence). Rather than giving me time the judge tells us that he wants a sentencing hearing and that ends the discussion. My client is led away (I go and talk to him for a few minutes) and the jury is dismissed. Actual sentencing will happen sometime in January.

Gotta love trying a full blown felony jury trial on the fly.

1 Not that I'm complaining. Before they started this place up in the court's basement about half the time my lunch consisted of the ubiquitous snack machine crackers and cola.

(1) You just can't pocket the money for the ticket. I find the part about "officers patrolling the interstate [being] encouraged to write two tickets an hour" interesting since everybody I know denies that there are quotas.

If you've "been diagnosed with heart disease, diabetes, degenerative bone disease, liver problems and gall bladder disease, among other things" in Montana first they will lose your request for medical parole and then after the press shames them into letting you refile they will deny it because you can walk, eat, talk, and bathe.

30 October 2003

First they change our money from a very classy look to a primitive, monopoly money look. Then they make it look even more like something from the 3d world and ugly by adding weird colors (peach? OMG).

And still counterfeiting takes place. And should we be surprised? My rather primitive home scanner is able to make the copy above. Imagine what someone with a scanner that cost more than $100 can do.

What really annoys me here is that the really serious deterrents (the strip, the ink that changes color, microprinting, watermarking) could have all been done with the old bill and retained some class instead of changing to the new Bozo-bills.

If the prosecutors put false information in to help convict you that conviction might be made to go away but it doesn't make your other conviction - for conspiring to have the prosecutors killed - go away.

Hmmm . . . I never thought of the presumption of innocence as requiring the jurors to disbelieve the prosecutor's witnesses. As much as I would like to propound such a standard (especially when the prosecutor is building his case on a bunch of snitches), I can't see giving the prosecutor the chance to jump up and yell and have the judge tell the jury that I don't understand the law.

This is exactly the person jury trials were put into place to keep in check - "the professional."

Juries guard against people as full of themselves as this gentleman who think the people should have little or no input in the day-to-day activities of justice. They guard against those professionals who are so ensconced in the system as to become mere cogs in the machine which tends toward conviction1. Juries guard against the relationship which develops between law enforcement and the professionals in the courtroom2.

Personally, I think it is a failure that more people are not tried by jury3. There is, of course, a huge judicial efficiency argument against this. However, I suspect that if there were not a strong distrust of the citizenry in the system this would be overcome.

1 I find it very hard to believe that people are more likely to be convicted by juries than judges. I've had more than one judge tell me he would have convicted my client after he was found innocent (and at least one before).

2 I've seen juries decide to believe my client over the story being told by the police officer. I've seen judges accept some amazing testimony from officers. Juries often have a better insight as to what really goes on between officers and the population. Note that we don't allow juries to decide some of those very interesting stories which are told by officers in order to justify a stop or search - they'd probably kick out many more cases than the judges do.

3 I am speaking here as a citizen not as a defense attorney. There are all sorts of procedural and substantive reasons which keep me from recommending trial by jury for most of my clients in Virginia.

No kidding? You mean those guys who are all fired up and yelling at me when I meet with them on Tuesday but sit in a corner and barely talk to me on Thursday have something wrong with them? What about the guys I have to sit and explain something to 15 to 20 times because they just can't seem to comprehend anything that takes longer than 10 seconds to explain? Or the guys who leave messages so long that they fill up my voice-mail but never say anything pertinent to the case? You mean these guys have mental problems?

Yet, when I get court ordered evaluations for them almost all seem to pass the legal standard for competency.

22 October 2003

Traffic Report: Updated 23 October 2003 and 27 October 2003 and 28 October 2003

As I am wont to do, I checked the usage stats on my site this morning and can report the following:

Somebody spent 70 minutes reading my site yesterday. Never thought I was that interesting. Heck, I don't even spend 70 minutes a day reading my site.

Most of my hits come from US. More - although not a majority - come from the Eastern time zone. Next is the Central, followed by Pacific, and finally Mountain.

Most of the site's hits come from numbers or some internet service provider and are generically identified as something like "att.net". However, those I can ID have broken down something like this in the last few days:

GovernmentBernalillo County, New Mexico
Army
Navy
Air Force
Department of Justice
U.S. Courts
(either there are several of you or one of you really enjoys this site)
US Patent Office
Baltimore State Attorney's Office
Fermi National Accelerator Labratory
There are also a number of hits I'm getting from ".us" preceded by va, ca, il, fl, me, mn, de, nv, et cetera. I assume these are government although the provider for that suffix only identifies them as being reserved in Northern Virginia.

21 October 2003

In Virginia we charge the indigent for costs of the trial (including attorney fees) if they lose the trial. If they don't pay it off (as most cannot) their drivers license is suspended1. Then they are picked up on driving suspended charges and have more fines and jail time. Of course, they still can't pay off the fines and their licenses remain suspended and they are picked up again for driving suspended and get more fines and costs and can't pay those . . . et cetera, et cetera, et cetera . . .

It's not exactly just but I don't know that it is unconstitutional. Maybe I'll raise it in a future trial to see how that question would be answered.

1 Theoretically, they can be hauled back into court and have some or all of any suspended time or suspended fines from their original disposition imposed. However, of the 5 jurisdictions I see fairly regularly only one does this and then only in the district court.

SW Virginia Law Blog points to a brochure about how much Virginia paid for indigent defense last year. Payments for court appointed counsel went up 32.1% from $43.7 million to $57.8 million. I suspect that much of this comes from certain repairs to the court appointed payment system (I now get paid for a felony when I deal with it in district court while previously I would have only gotten paid misdemeanor rates if I handled the felony in district court).

The sad thing is that the caps imposed by the Legislature still leave us as one of the lowest paying States.

Indigent representation by court appointed counsel jumped 17.4% in one year from 193,352 people to 227,058 people. Not sure what the cause of that is. The courts have actually been able to get $4.5 million in fees paid out (7.8%) back from clients who were convicted. I'd guess this is from people desperately trying to pay off their fines/costs so they might someday be able to get their licenses back (from my perspective, we seem to take your license if you sneeze the wrong way in Virginia).

Disturbing: If the number of people represented by court appointed counsel has risen 17.4% one can extrapolate that a similar jump has probably occured in numbers represented by public defenders. Yet we see little or no rise in funds to the public defender offices over the last five years. One might suspect that the offices are set up to save money and then not given increases in funding and/or manpower even if the workload rises.

I notice from the article that most of the stories concern females (only one concerns a drunk guy who quickly fessed up). Does anyone know if this is an accurate portrayal of who files these false reports or if the article is just unintentionally misleading?

. . . questions the guy who tries to do at least 1 DOD level wipe of his computer every month despite the fact that he really doesn't do anything which makes it necessary. Heck, I don't even store credit card info on my computer.

In addition to the type of crime this article concerns I can say that since I've been observing the federal district court in Richmond I've seen any number of cases involving strong-arm robberies, low level possession with intent to distribute, and/or gun possession charges. I was really surprised to see AUSA's prosecuting cases with a couple grams of cocaine and a pistol. I've handled far more serious cases in the Commonwealth's courts. I don't yet have enough experience in the federal court to offer an opinion as to why these cases are being prosecuted in federal court rather than the courts of Richmond.

Just finished reading Gerry Spence's "The Smoking Gun." This very morning I finished the final chapter1. It's a page turner, a story told extremely well. Obviously, the book is slanted in favor of the Defense and the original prosecutors are shown little or no mercy. The special prosecutors are treated better and in at least one foray into what might be motivating them Spence admits that they are prosecuting because they believe that his client is responsible for the death of the victim.

Of course, Spence doesn't believe his client did it and eventually the evidence bears out his belief2. At the very least, even assuming that the evidence as laid out in the book is slanted (it is), there is clearly reasonable doubt created by the lies of the prosecutor's primary witness in combination with some forensic evidence which heavily favors the Defense. Am I being vague here? Yes, I am. Mr. Spence spent the time to write it3, go spend some time reading it. It's worth the time.

1 Which is why I'm writing about it rather than posting stories I've researched - hopefully I'll put bullets up later today.

2 Only prosecutors seem to write about cases they lost so that they can rail against a system which lets so many evil-doers escape justice - because we've all seen how 98% of defendants are found not guilty. [further snide remarks against prosecutors deleted by self-censorship]

I live in a two room apartment and I have doubts that if I were doing anything other than just sitting in my front room watching TV that I'd be able to get to the door within 15-20 seconds. In my old apartment where I had three rooms and did not use the front room there's no way I would have made it. On top of that one suspects that in the real world police, more concerned with officer safety and the preservation of evidence than constitutional niceties, probably do most of these home invasions at early hours with the expectation of catching people in bed, yelling in their best stage whisper "Police, open up!", and rapping on the door as hard as one can with the tip of one's pinky.

Someone needs to explain to the author of this article that the fact that the federal supreme court didn't hear this issue means it does not at this time express any opinion - not that it approves the 9th's decision on doctors discussing marijuana as an option. After all, you can only overturn so many of the 9th's decisions each year. There are a few other jurisdictions out there trying to get the Justices to hear their cases too.

Greed forces the closing of a prison. Bilking money from prisoners' families thru the collect calls prisoners must make to talk to family members has become something of a cottage industry at some jails/prisons. While I'm sorry for the decimation of this town, I'm happy to see someone doing something about it.

Rates I see advertised on TV: 3 cents a minute (I don't know what the connection charge is) or $1 for 20 minutes

Rates at the new prison: 22 cents per minute ($1.25 to connect); $8 per 20 minutes

Rates at the closed prison: 89 cents per minute ($3.95 to connect); $22 per 20 minutes

13 October 2003

In my Junk Mail Box This Morning: A new version of an old scam:

DEAR FRIEND,YOU WILL BE SURPRISE TO RECEIVE THIS LETTER BUT WHEN YOU GO THROUGH IT YOU MIGHT NOT BE SURPRISE AGAIN IF THE INFORMATION HAS SOMETHING TO DO WITH YOU. I AM THE CONFIDENTIAL SECRETARY FOR THE INVESTMENT CONTROLLER OF A SOUTH AFRICAN BASED INVESTMENT CORPORATION.MY BOSS/PARTNER INSTRUCTED ME TO CONTACT YOU IN RESPECT OF A CLAIM/DIVIDEND,WHICH MATURED SINCE 1998.THE INVESTOR AFTER COLLECTING THE SAID RETURN OF INVESTMENT FROM OUR FIRM AND DEPOSITED THE CASH WITH A SECURITY COMPANY DIED AFTER ONE WEEK IN A MOTOR ACCIDENT IN NOVEMBER 1998 AND FROM THE CONTENT OF HIS FILE WITH US,WE NOTICED THAT THERE WAS NO NEXT OF KIN IN HIS DETAILS AS HE PROMISED TO FORWARD THE INFORMATION LATTER TO US.

BUT THIS HE DID NOT PROVIDE UNTIL HIS DEATH. WITH FURTHER INVESTIGATION TO TRACE THE ROOT OF THE INVESTOR,THIS MADE THINGS MUCH COMPLEX AS THE INFORMATION WE GOT CONFIRMED THAT HIS WIFE AND ONLY SON DIED IN RUSSIA IN AN AIRCRASH IN THE YEAR 1998. HOWEVER,MY BOSS HAS TAKING IT UPON HIMSELF TO TRACE THE NEXT OF KIN IF POSSIBLE TO CLAIM THE US$155,600,000.00 (ONE HUNDRED AND FIFTY FIVE MILLION SIX HUNDRED THOUSAND UNITED STATE DOLLARS ONLY) WHICH IS THE TOTAL SUM PAYABLE TO THE NEXT OF KIN AS ALL THE LOCAL TAXES HAS ALREADY BEEN DEDUCTED AND THE CASH ALREADY WITHDRAWN FROM THE SOUTH AFRICAN RESERVE BANK AND BOXED. THE INVESTOR HAS DEPOSITED THIS AMOUNT /CASH WITH A SECURITY COMPANY WITHOUT THE COMPANY KNOWING THE CONTENT OF THE BOX FOR SECURITY REASONS BEFORE HIS DEATH. THE CONTENT WAS DECLEARED TO BE COMPANY TREASURE DOCUMENTS,FILES(PAPER) AND THE CORPORATION HAS PAID THE SECURITY COMPANY US$20,000,000.00 ON BEHALF OF THE BENEFICIARY AS THE INITIAL DEPOSIT FOR THE SAFE KEEPING OF THE BOX AS THEY HAVE CHARGED US$100.00 PER DAY FOR THE SAFE KEEPING. I AM CONTACTING YOU BECAUSE YOUR LAST NAME AND THAT OF THE INVESTOR IS THE SAME,WHICH MY BOSS SUSPECTED THAT YOU MIGHT BE THE INVESTOR'S RELATION. PLEASE RECORN FIRM TO US IMMEDIATELY IF YOU HAVE ANY BROTHER WHO WAS 68 YEARS OLD BEFORE HE DIED IN 1998.IF IT IS TRUE,WE WILL ARRANGE FOR YOU TO MAKE THIS CLAIM AS SOON AS POSSILBE.BUT IF NOT WE HAVE NO OTHER OPTION THAN TO PROCESS IT WITH YOUR NAME AND COLLECT THE MONEY TO AVOID THE CASH BEING RETURNED TO THE SOUTH AFRICA GOVERNMENT AS UNTRACABLE/UNCLAIMED DIVIDEND.

AS WE CANNOT AFFORD TO WAIT AND SEE SUCH AMOUNT OF MONEY WASTE INTO THE GOVERNMENT POCKET. FOR YOUR INFORMATION,IF YOU ARE WILLING TO ASSIST IN CLAMING THIS FUNDS, PLEASE CONTACT ME AS SOON AS POSSIBLE WITHIN THREE MONTHS FROM TODAY.BEFORE THE SOUTH AFRICAN GOVERNMENT TEAMS TO KNOW ABOUT IT. PLEASE DISREGARD MY PROPOSAL TO USE YOUR NAME TO CLAIM IT IF THE INVESTOR IS REALLY YOUR BROTHER.BUT IF NOT WE WILL SHARE THE MONEY ON 50% EACH AFTER THE CASH HAS BEEN PAID TO YOU. NOTE THAT THIS BUSINESS IS 100% LEGAL AND RISK FREE. PLEASE TREAT THIS AS MOST URGENT AND CONFIDENTIAL.

BEST REGARDS,SAMUEL COKER

Hmmm . . you mean I might be able to get rich because someone with my name died and I could possibly help steal the funds? I'm all over it!

(7) The Brits are putting people thru 3 weeks of training and sending them out onto the street as "police community support officers" with limited powers. It's an interesting idea if they can work the bugs out.

11 October 2003

Virginia's Crime Commission is preparing to revamp the criminal code. Good. Maybe they will fix the ridiculously low (and embarrassing) grand larceny requirements. Maybe they will actually list the elements of crimes rather than merely listing punishments (leaving you to search for elements in Groot's book or the case law). Maybe they'll scrap the whole larceny, embezzlement, crimes punished as larceny system for a simpler "theft" system as is found in many States. Maybe they'll do away with the ridiculous 20 year penalty for larceny in favor of a 5 year penalty (or at least stagger the max by amount taken). It is incredibly rare to see a larceny actual be punished with more than 3 years even with the 20 year max now available. The stiffest penalty any of my clients has received for a larceny by itself was 5 years and the guidelines recommended about 1 1/2 years - this judge was the only one I've seen decide he should punish contrary to the guidelines in a larceny case. Maybe they can stop the abuse by merchants who use prosecutors - as their collectors by filing criminal charges on checks or repo men by filing "hiding your car in another State" charges on people who won't turn their cars back over when they can't keep paying - rather than going thru the hassles of civil court like they are supposed to.

&cetera. &cetera. &cetera.

I suspect that the Legislature will not allow substantive change. We'll see a re-arrangement in a more orderly manner (maybe) and perhaps (if the legislature is brave) a rise in the felony larceny level from $200 to $400 or $500.

10 October 2003

Did you know that all criminal defense attorneys and plaintiffs' attorneys are evil liars who are loathed by everyone?

I can't speak for plaintiff's attorneys but yes, I must admit that ever since I decided to become a criminal defense attorney and signed that contract in blood I have striven to be evil incarnate. To that end I have modeled myself after my hero:

Ming the Merciless

Oh well, I must go off to court to do more evil deeds . . .

1 And I encourage them. They don't often change my mind but a rational explanation of another point of view is always worth seeing.

07 October 2003

The Joy of Court Appointed Work:

(1) Appointed to Virginia Exile case (5 years mandatory). Visit client at a jail in another county and interview him. Have a bond hearing.

(2) Approximately two months later, have a preliminary hearing. Total work at this point = approximately 5 hours of work at $90 per hour1 ($450). Statute and funding from the Legislature limits payment to $112.

(3) Approximately two months later, prepare for bench trial and negotiate with Commonwealth Attorney. On the trial date, prosecutor offers 2 years but client declines and asks for a jury trial (a choice I agree with). Work at this point approximately 4 hours ($360).

(4) Approximately two months later, after serious negotiations the prosecutor offers 1 year and 6 months. Client declines and the jury trial is continued because witnesses have not been located. Work since first trial date 5 hours ($450).

(5) Approximately 2 months later, spend week preparing for the jury trial (looking up cases; making sure arguments are ready; preparing jury instructions, &cetera). Go to prepare the Defendant in jail 3 days before trial. Halfway thru preparation the Defendant decides to take the plea agreement. Go to the courthouse the next day and spend two hours getting the jury called off. The day of trial Client comes into court and pleads guilty2. Work since the continuance 10 hours ($900).

Total amount of payment due by hourly rate: $1,710.

Cap imposed by the Legislature: $395.

The worst thing about it isn't really all the work I did without compensation. I long ago realized that if my indigent clients' rights were going to be actual rather than a nice theory I was going to have to lose money on almost any jury trial for them. The worst of it is that I did all that work without compensation and never even got to put on a jury trial I thought I could win.

1 In theory the Commonwealth of Virginia allows us to bill $90 per hour in court appointed cases.

2 And I leave extremely frustrated because I think the case was very winnable.

(2) An attorney can be sued for not doing a good enough job. I am curious as to what the truth is behind the claim that the attorney didn't talk to an important witness. I cannot count the number of times a Defendant has sworn to me that "GG" saw it all and could back his story but couldn't tell me a real name, an address, or a phone number. And then, of course, it's all my fault when I can't find him or get a subpoena served on him to make him come to court.

(2) The federal supreme court will decide whether the fact that a jury received wrong instructions is enough to require a new trial in a case where the government is trying to kill the Defendant. The closure argument disturbs me in death penalty cases; every time I hear it it sounds like the prosecutor is saying, "Just let us kill the S.O.B. and it will be the end to all this useless legal wrangling." Of course, the problem in these cases is that, if the Defendant is innocent or the jury would have sentenced him to life, once you kill him there is closure.

That strikes me as not being absolutely true. Taking a copy of a piece of software does not deny others its use as taking a car does. There also seem to be a business models which allow the free distribution of software. I can download my favorite web browser (Opera) as many times as I wish without paying a penny. I can also download other browsers (Mozilla Firebird or Netscape) free of charge. There's free media playing software such as Real Player and Quick Time. There's free office software such as Abiword and OpenOffice Suite.

All of which would seem to indicate that there is a big difference between stealing even one Yugo and making several copies of a piece of software. Not that I am championing theft of intellectual property but by its very nature this particular type of theft makes something more available rather than less. Of course, the creation of value in intellectual property depends on some sort barrier to the availability of the intellectual property. As these barriers become more and more artificial1 - in response to the easy availability of information and its derivatives thru technology such as VCR's, computers, high-speed internet, writeable CD's/DVD's, &cetera - it becomes harder and harder to convince someone that he should pay $25 for the newest CD (for the one good song on it) or $60 for a computer game when he can pick up either for free using Limewire.

1 The most frustrating of these for me - while not exactly concerning intellectual property - was when the MLB made radio stations stop broadcasting baseball games over the internet. I used to listen to a Red's game every couple of days on Ohio or Kentucky stations which carried them. This obviously helped baseball by keeping alive interest in baseball in locations where there is no nearby pro team. Since I moved to Virginia and MLB cut me off I've not been able to root for my team and there is no team which is rooted for locally (despite whatever delusions the owners of the Orioles might have as they fight to keep a team from being in D.C./Northern Virginia). Of course, I could go to MLB's site and pay to listen but I refuse to pay for an artificial barrier set up by MLB and basically don't pay much attention to baseball anymore except for the Little League World Series, parts of games in the MLB playoffs if the game is good, and I try to go to a couple of the AAA Braves games in Richmond each year.

For what it is worth, the 9th Circuit has declared DNA tests (and thus DNA databases) without suspicion of illegal activity an unconstitutional search. Basically it called the taking of DNA a fishing expedition.

Basically, I agree with them. However, I live in Virginia, in the 4th Circuit where quoting the 9th is the death knell of any legal argument.

The question I have is that if this database is unconstitutional what is the status of the fingerprint databases?

02 October 2003

Quick question for all you law students out there (or anyone else looking for a position): You recieve three offers from (1) Milton, Chadwick & Waters; (2) Bandini, Lambert & Locke; and (3) Wolfram & Hart. Which do you accept and why?

Personally, being a great believer in the common sense of juries, I think jurors should be allowed to decide whether the prosecution is applying the law in a just manner. It's condescending to say that 12 regular citizens cannot tell if charging someone with larceny for taking a paperclip from work is justified (yes I know it's an extreme example).

Generally, it is my belief that prosecutors don't like jurors to exercise this power (they always have it but it is verboten to mention it during a trial in most States) because it has a lopsided democratization effect. When "the mob" gets out of control in most of life's situations it can act in a way that is either pro or anti government. In court the prosecutor, by bringing a particular charge, has limited the mob's ability to be pro-government1. Therefore, should the jury think that the prosecutor has not been severe enough it cannot void his decision in favor of a more stringent penalty even if a more stringent penalty is justified2.

On the other hand, should the jurors think that the prosecution has overcharged or that applying the law as written to the Defendant is unjust they can unequivocally show their displeasure by refusing to convict. Why do you think that prosecutors fight so hard to keep the mention of mandatory sentences in Exile cases from being put before the jury? If a jury knew that the Defendant would get a mandatory 5 years in prison because he had a felony 20 years ago, he borrowed his son's car to go to the market to pick up some bread, and the son kept a pistol in the glove compartment which the father knew about (but forgot) would the jury convict if it were allowed to decide whether the charge was just? Anyone who has seen the wide eyes when jurors are told they must impose the mandatory time knows that there's a good chance they would not.

Which, all-in-all, is a long winded way of saying that I understand why prosecutors dislike this role of the jury. That judges disapprove of it also is a posting for another day . . .

1 I am assuming for this argument a prosecutor who makes an appropriate charge Of course, a prosecutor may overcharge for leverage, political reasons, or as a trial tactic. Usually this occurs in the manner of the Defendant being given a number of charges for a single happening. An example is when a man is charged with forging, uttering, and grand larceny for handing over one bad check. If the law limited the prosecutor to the most serious of the charges in this one temporal event (one event = one charge) it would make much more sense but by charging all three two can be negotiated away and a felony conviction obtained with less muss and fuss.

2 Yes, I realize that it is unlikely that a jury would be tougher than the prosecutor but we're talking theory here, not reality.

Ambush in Bartlette

Disclaimer

In case anyone out there needs this warning: This ain't legal advice. Everything in the blog is off the cuff and no one goes back and reads all the cases and statutes before blogging. The law may have changed; cases misread and misunderstood two years ago can still lead to a clinging misperception. Courts in your county, city, or State probably don't operate as described herein. Feel free to be inspired, but YOU MUST ALWAYS DO YOUR OWN RESEARCH OR HIRE A COMPETENT ATTORNEY TO DO SO because I haven't.